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Plumb v. Salt Lake County

United States District Court, D. Utah, Northern Division

February 13, 2017

JACK SAMUEL PLUMB and JENNIFER PLUMB, Plaintiffs,
v.
SALT LAKE COUNTY and SKYVIEW EXCAVATION & GRADING, INC., Defendants.

          MEMORANDUM DECISION AND ORDER AWARDING ATTORNEY FEES

          CLARK WADDOUPS, UNITED STATES DISTRICT JUDGE

         Before the court is the motion of Plaintiffs Jack and Jennifer Plumb for an Award of Attorney Fees and Other Litigation Expenses. (Dkt. No. 139.) The motion is supported by the Declaration of Brandon J. Mark with attached exhibits (Dkt. No. 139-1) and the Supplemental Declaration of Brandon J. Mark, also with attached exhibits (Dkt. No. 176). Judgment has been entered in Plaintiffs' favor (Dkt. No. 144), and the court previously ruled that Plaintiffs are entitled to attorney fees for their inverse condemnation claims and for other costs specified in 42 U.S.C. § 4654(c). (Dkt. No. 132.) The issue now before the court is the reasonableness of the amount of attorney fees requested. Defendant Salt Lake County opposes the motion, arguing that the requested amount should be significantly reduced. (Dkt. No. 148.)

         Plaintiffs initially requested attorney fees of $289, 599.50, expert fees of $30, 547.61, and costs and expenses of $7, 699.76, for a total of $327, 846.87. (Dkt. No. 139.) After the post-trial motions, Plaintiffs supplemented their motion to request an additional $31, 722.00 in attorney fees and $5, 879.17 for additional and untaxed costs, for a total of $365, 448.04. (Dkt. No. 176.)

         Plaintiffs' Original Request for Attorney Fees

         The beginning point in determining the reasonableness of a request for attorney fees is the lodestar amount, calculated by multiplying the hours spent times a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This same methodology has been recognized as appropriate to determine the fees to be awarded under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4654 (the “Acquisition Act”). Hash v. United States, No. 1:99-cv-00324-MHW, 2012 WL 1252624, at *3 (D. Idaho April 14, 2012). The lodestar amount must be supported by detail specifying the dates, tasks accomplished, and the time spent on the various tasks. Id. The descriptions must be sufficiently detailed to allow the court to determine that the task was reasonably related and necessary to pursue the claim. Id. The court finds that the lodestar amount in this case is supported by sufficient detail to allow the court to determine the reasonableness of the request. The court also finds that the hourly rates used to calculate the lodestar amount are consistent with fees regularly charged by attorneys with the experience and expertise of Plaintiffs' lawyers.

         There is a presumption that the lodestar amount is a reasonable fee, and the court should deviate only in “‘exceptional' cases.” Id. (quoting Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010)). The court should not “mechanically adjust the lodestar figure downward based on the amount involved and the results obtained.” Bywaters v. United States, 684 F.3d 1295, 1296 (Fed. Cir. 2012) (citation, quotation marks, and brackets omitted). Moreover, because the Acquisition Act is intended “to permit people with small takings claims to vindicate their rights with the assistance of competent counsel, ” the reasonableness of the fee is not driven necessarily by the amount of the recovery. Id. (citation and quotation marks omitted). The Act's purpose is the vindication of “constitutionally protected property rights.” Id. (citation and quotation marks omitted). The court should also consider that the plaintiff in such an action was forced to litigate with the government entity and any unreasonableness of the government entity's actions in refusing to offer reasonable compensation for the property taken. Pete v. United States, 569 F.2d 565, 568 (Ct. Cl. 1978). The court may also weigh the nature of the opposition and defenses offered by the government entity in determining the fees reasonably incurred. Indeed, the fact that the fees incurred exceed the amount recovered is not a basis for reducing the fees if the court finds they have been reasonably necessary to respond to the government entity's litigation approach to resisting fair compensation. See, e.g., Swisher v. United States, No. 98-1352-CM, 2003 WL 2006818 (D. Kan. March 3, 2003).

         Nevertheless, the court is required to carefully evaluate the reasonableness of the fee requested and appropriately adjust it to account for the results obtained and the necessity of the time spent. In Hensley, the Supreme Court gave the following guidance:

There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment. This discretion, however, must be exercised in light of the considerations we have identified.

461 U.S. at 436-37. These considerations include the skill and experience of the lawyers and whether there has been a good-faith effort to exclude hours that are excessive, redundant, or otherwise unnecessary. Id. at 434. The court should also consider whether the billing attorneys have exercised “billing judgment.” Id. The court may also adjust the fee upward or downward based on the “result obtained, ” while recognizing that this consideration includes whether the plaintiff achieved excellent results and the type of relief obtained. Id. A fee should not mechanically be reduced simply because a plaintiff did not prevail on all of the relief requested. Id. at 434-35.

         Salt Lake County raises the following seven objections to the amount of fees requested. First, the County argues, relying on Emeny v. United States, 526 F.2d 1121, 1123 (Ct. Cl. 1975), that the Acquisition Act “does not allow the prevailing party in an inverse condemnation [action] to recover expenses incurred prior to the filing of the lawsuit.” (Dkt. No. 148, p. 4.) The County argues that Plaintiffs began incurring fees in March 2013 but that the first time entry mentioning the drafting of complaint was October 25, 2013. (Dkt. No. 148, p. 5.) Thus, it contends that the fee request should be reduced by 18.3 hours for time billed during this interim period. (Dkt. No. 148, p. 5.) The County does not assign a dollar value to the reduction it seeks.

         In Emeny, the court affirmed the trial court's award to the plaintiffs of damages in the amount of $221, 880 for the taking of gas storage rights and incidental rights in the surface of plaintiffs' land and of $341, 346.60 as litigation expenses. Id. at 1126. The Government opposed the award as excessive. See Id. at 1124. The requested expenses included pre-litigation expenses and litigation expenses. Id. at 1123-25. The court rejected the request for pre-litigation expenses as not being allowed by the Acquisition Act. Id. at 1124. In explaining its ruling, the court noted that § 4654(c) only allows for “‘reasonable' expenses that are ‘actually incurred because of' a proceeding” brought for the taking of property. Id. The court described the time spent on “pre-litigation” as efforts “to ascertain the nature and extent of their property right in the gas storage capacity of the Bush Dome, and . . . to obtain a recognition of such right from the Government through negotiations.” Id. Such efforts were not expended because of the litigation, but to clarify the nature of the property rights. See Id. The court concluded that it was precluded by the language of § 4654(c) from awarding expenses before plaintiffs decided to file suit and declined to award the amount incurred pre-litigation. Id.

         The Emeny court did, however, allow the time incurred to pursue the litigation once the plaintiffs decided to file suit, but it reduced the requested amount because of plaintiffs' strategy of hiring several law firms to be assured they presented a strong legal position. Id. at 1125-26. The court noted that plaintiffs had engaged “duplicate sets of lawyers” to bring and review the claims asserted and that, while this may have been “objectively reasonable” from plaintiffs point of view, the Government should not bear that expense. Id. at 1124, 1126. The court eliminated the fees requested for time spent reviewing the principal attorneys' work, awarding 91% of the total expense requested. Id. at 1126. The award included $69, 240.15 for time the plaintiffs spent establishing their right to recover litigation expenses. Id. at 1127. The court rejected the argument that the requested fees should be further reduced because they exceeded the amount awarded as damages. See Id. at 1126.

         Here, the County argues that under the Emeny precedent any time spent prior to Plaintiffs' drafting of the complaint should be excluded. (Dkt. No. 148, pp. 4-5.) The argument does not prevail. First, it is clear from a review of the time entries that the work during the period from March 2013 through October 2013 was incurred because of the proceeding. The entries show counsel met with their clients, investigated the facts, complied with pre-filing notice requirements, and engaged in research necessary to advance the litigation. There was no issue as to the Plaintiffs' ownership of the land or the nature of their title. Second, there is no duplication of effort between multiple law firms to review and test the soundness of Plaintiffs' legal theories. The Emeny precedent and analysis are not applicable to this case.

         Second, the County next objects that the requested fee should be reduced for work on claims brought against Skyview Construction. (Dkt. No. 148, pp. 5-9.) It argues that these were wholly separate claims and were not incurred because of the condemnation proceeding. (Dkt. No. 148, p. 5.) It further argues that the claims against Skyview were dismissed with prejudice, with each party to bear its own attorney fees and costs. (Dkt. No. 148, p. 6.) The County identifies a total of 10.5 hours as examples of the difficulty of determining which time should be allocated to the Skyview claims. (Dkt. No. 148, pp. 7-9.) The County suggests that the resolution of this difficulty is to reduce by 50% all of the fees incurred prior to Skyview's dismissal. (Dkt. No. 148, p. 9.) The court also rejects this objection. The principal weakness of the argument is that the County completed the taking of Plaintiffs' property through Skyview's actions, which the County directed and approved. Thus, Plaintiffs were required to investigate, conduct discovery, and pursue the claims against Skyview in order to prevail on their claims against the County. Moreover, Plaintiffs succeeded in proving that Skyview's conduct resulted in a taking of their property, as well as proving their claims against Skyview, which claims were settled only after a jury verdict in favor of Plaintiffs. ...


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